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Economics References Committee
Personal choice and community impacts

AU, Mr Ben, Director, Policy and Research, Classification Branch, Department of Communications and the Arts

RAINSFORD, Ms Cathy, Assistant Secretary, Classification Branch, Department of Communications and the Arts


CHAIR: Welcome. I remind senators that the Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. Officers of the department are also reminded that any claim that it would be contrary to the public interest to answer a question must be made by a minister and should be accompanied by a statement setting out the basis for the claim. Thank you for appearing today. I invite you to make a brief opening statement, if you wish to do so.

Ms Rainsford : Thank you for the invitation to attend today. I do not wish to make an opening statement. We are happy to answer any questions senators might have.

CHAIR: In that case, I better retrieve your submission and my questions. I was expecting you to have something to say. First of all, let me help both myself and Senator Gallagher on understanding jurisdiction here. There seems to be both Commonwealth and state involvement in this whole area, and I am unclear as to exactly how that works. Perhaps you could explain that to kick off with, please.

Ms Rainsford : Certainly. The National Classification Scheme is a cooperative scheme which is jointly owned by the Commonwealth, states and territories. To that end, it is underpinned by the 1995 Intergovernmental Agreement on Censorship, which sets out the respective responsibilities. Broadly, the Commonwealth is responsible for the classification of the films, publications and computer games in accordance with the Classification (Publications, Films and Computer Games) Act 1995. Within those arrangements, the states and territories are responsible for the enforcement of classification laws. In practice, that means that in each jurisdiction there is classification legislation which sets out, among other things, the offences and penalties for those in, for example, distributing refused classification material.

CHAIR: Constitutionally, where does it land? Does it come under communications and is therefore a Commonwealth thing? What limitations are there on Commonwealth power that allow the states to have some involvement in this area?

Mr Au : It is a cooperative scheme.

CHAIR: I understand that, but that is kind of an agreement that this is how we are going to do it. If it came to a High Court situation, where would the limits of Commonwealth power end?

Mr Au : I believe that the Commonwealth relies on the territories power. The classification act and the scheme relate to the making of classification decisions in the ACT. The states and territories kind of hang off what the Commonwealth does in how it sets out its classification enforcement legislation.

CHAIR: If the Commonwealth were to go to a COAG meeting of relevant people and say, as the Australian Law Reform Commission and Eros suggest, that the Commonwealth take over full responsibility for this area, would it have the power in the states?

Ms Rainsford : I think that is a difficult question to answer, in the sense that, without details of what the Commonwealth would be seeking to do in terms of the structure and design of a scheme, it is difficult to determine where constitutional power for the Commonwealth might end.

CHAIR: You said that classifications are done by the Commonwealth, but then the states enforce them. The states are enforcing state law, are they?

Ms Rainsford : Yes, that is correct.

CHAIR: If the Commonwealth legislated mirror legislation that already existed in the states, would that be constitutionally valid?

Ms Rainsford : Again, it is a bit difficult to answer that. The legislation varies from state to state. If the Commonwealth were seeking to take over those powers, an essential part of that process would be assessing whether or not it had constitutional power to legislate to take over that enforcement aspect of the scheme, which currently sits with the states and territories.

CHAIR: I will not harass you anymore on that point. If we can now come to the question of the National Classification Code. You have said, 'minor amendments to the scheme and any changes to the code, to the guidelines, must be considered and unanimously agreed to by all classification ministers.' In practical terms, how does that occur? Are the actual changes unanimously agreed? When was the last time that changes were agreed?

Ms Rainsford : I believe the last time that changes were unanimously agreed was to introduce the R rating for computer games under the scheme, which happened in 2013.

Mr Au : It was 1 January 2013.

CHAIR: How often has this unanimous agreement situation occurred?

Mr Au : It is very rare. I could not tell you how often off the top of my head, but I suspect it will be a very low number.

CHAIR: Is there any process occurring in the department looking at implementation of the ALRC recommendations? What is your understanding of the fact that so few have been implemented?

Ms Rainsford : Since the ALRC's report was tabled back in 2012, there has been some reform undertaken. A bill went through the parliament, I think, the year before last, which reformed three areas of the scheme. In an ongoing policy reform manner, we now continue to look at the remainder of those recommendations and how the scheme is currently working to develop advice for government on potential reform into the future. Reflecting on your earlier comments, part of that necessarily involves liaising with our state and territory colleagues. In the same way that the intergovernmental agreement requires the unanimous agreement of classification ministers around the country in order to update the code or the guidelines, it also requires that there is the same agreement for substantive changes to the National Classification Scheme.

Senator GALLAGHER: I recall this being on the SCAG agenda—permanently, it seems. Is it? How long has it been. Certainly, there have been ongoing discussions through the ministerial council.

Ms Rainsford : There have been ongoing discussions at officials' level. I think the last group of discussions at a ministerial level were in the lead-up to the reform agenda that was given effect by that bill the year before last.

Senator GALLAGHER: In 2014?

Ms Rainsford : Yes.

Mr Au : In 2013, I believe.

CHAIR: I am still a little bit mystified as to why so few of the recommendations of the ALRC have seen the light of day. Is there a log jam in your department? Are you doing too many things? Are any of the states being obstructive about it? What is the source of the slow progress?

Ms Rainsford : I would say that the requirement that there needs to be unanimous agreement to reform across all classification ministers in the states and territories as well as in the Commonwealth is a challenge in the scheme. Classification of content—film, computer games and publications—can be a sensitive and controversial area and different jurisdictions take different views on what reform is necessary and how to progress that.

CHAIR: That brings me to an issue that I was pursuing with the Eros folks. Their complaint is that there is a set of criteria applied in relation to classification that prohibits the selling of material that depicts activities that are illegal. So they are not prohibited and it is not illegal to possess them; it is just illegal to sell them, which is a strange situation in some respects. What sorts of discussions have there been in the departments and at the COAG body where the staff and the secretaries of the department—the head sherangs—all get together and talk before they tell their ministers what they should agree on? What sort of consideration has been given to that issue, if anything?

I know I was a bit vague there, but I am interested in how much consideration has been given to this factor, right from the people that do the work up to the people who just sign off on the piece of paper. There is a difference between what is illegal and what is not permitted.

Ms Rainsford : Perhaps if I can explain the role of the classification board, that might assist in providing an answer to that. The Commonwealth act establishes the classification board which, on application, classifies the products that are put to it. In making those decisions it is bound by the requirements of the act and the classification code and to apply the guidelines which set out broadly what fits into each category.

The act also sets out a range of things that the board needs to take into account in making those decisions. One of those is commonly referred to as the community standards test. As part of our role, both in supporting the National Classification Scheme from a policy and administrative front, and also supporting the board in its duties, there are a range of things that are done in order to enable the board to inform itself about where community standards currently sit. Some of that comes from a research program that is conducted in my branch, which, from time to time, will undertake research about current community standards. That research is shared with the board, and, generally, with the public through our website. In addition, there are a range of procedures that the director of the classification board has in place to inform herself and board members about where community standards might change over time. That includes taking into account feedback from stakeholders and members of the community.

CHAIR: I can understand that. That would affect what goes into what classification. That is fine, as far as it goes. But we have an X18+ category which is quite restricted in terms of access, and yet, there is stuff in there which is not permitted which is legal. What I am interested in is to what extent has that question come up in the context of your considerations?

Ms Rainsford : It is certainly something that we are mindful of in terms of whether or not the guidelines are still appropriate in support of the objectives of the scheme. I have not been involved in any specific discussions about the specifics of the X18+ category in recent months.

CHAIR: What do you think the appetite of the group that meets those states and your people would be for 'refused classification', which is prohibited to sell, being concurrent or identical to what is actually illegal? So if it is legal, it can be classified in some way or another and is not prohibited. What is your thinking? Has there been any consideration of that issue?

Ms Rainsford : I have not specifically discussed that topic with my state and territory colleagues, so I do not feel like I am in a position to—

CHAIR: To speculate. I read your submission and I find words in it that are entirely subjective. The 'refused classification' category includes content that:

contains gratuitous, exploitative or offensive depictions of activity accompanied by fetishes or practices which are offensive or abhorrent

What is the definition of 'offensive or abhorrent'? How do you arrive at those things? Is this part of your community standards test?

Ms Rainsford : That is a direct quote from the guidelines for the classification of film.

CHAIR: I know, but it is so subjective. How do you deal with it?

Ms Rainsford : Effectively, it is a matter for the board to determine what that means and how it applies to content in front of them. For example, I think Mr Murray, in his earlier evidence, referred to the fact that there is some material in films at an MA or R rating which will cover certain fetishes, incest or bestiality. The board comes to that looking at a range of things. In making its decision it needs to look at the classifiable elements as well as the context and the impact. In terms of films, the narrative in which that content is shown is an important part of its decision-making process such that in context and with appropriate guidance about age appropriateness certain content might be available or appropriate for a rating at an MA or R level. But in a different context, where its impact is higher or where there is no narrative or context which justifies it, it might meet the definition of 'gratuitous, exploitative or offensive'.

CHAIR: I read quite a number of the submissions that followed on from the ALRC recommendations. There is some very sensible stuff in amongst it all. One of the things that struck me was the possibility that rather than classify stuff you can in fact limit access of certain types of material in cases where you are trying to ensure it does not come to the attention of minors and also so that people who do not want to have anything to do with violent or sexual material are not unwittingly exposed to it. Has that been a subject of discussion amongst your group? It is simply an access issue rather than a classification issue. Could you do that without classification or do you think classification would be integral to that?

Ms Rainsford : I think some of that depends on the definition of classification. There are already aspects of the National Classification Scheme which are about access.

CHAIR: Yes, you are right—restricted premises and things.

Ms Rainsford : Certainly the MA15+ rating is about—

CHAIR: Hours of viewing.

Ms Rainsford : restricting access to people under 15 unless they are accompanied by a parent or guardian. That means different things in different states and territories. Likewise, the R and X categories are restricted to people who are adults—18 or over. So there are already elements of that. Likewise, there are already a range of advisory elements that sit within the scheme. So, in addition to the rating category that the board allocates, it also allocates consumer advice which is designed to give consumers some additional information, in particular about the highest impact elements of the content, so that they can make a decision about what is made.

In relation to the publications, there are some elements around restriction of where certain category 2 publications can be made or how lower impact category 1 publications need to be displayed in premises. Part of that is designed around making sure that people, including adults, are not exposed to material that they might find offensive, recognising that, in the spirit of the principle, adults should be able to see, read, hear and play what they want. Some members of society will find some material offensive and not what they would choose to consume, whereas it should be available to other members. I think moving to an access regime necessarily presupposes some assessment is done somewhere about where those restrictions should kick in. At the moment, that assessment is made by the Classification Board under our legislation. There are other ways that can be done. The ALRC recommended moving more to an industry based co-regulation model, which is a bit like how the broadcasters do their classification at the moment. There are different ways that could play out in terms of achieving those objectives.

CHAIR: You are right, in practical terms. Theoretically, you could nominate criteria and say, 'If it meets these criteria, access is only permitted of this kind.' You could probably do that—have access restricted based on nominated criteria—or you could do it based on classification. I presume one would be pretty much substitutable by the other anyway. I am just thinking of who would do the classification, but that is another issue.

Senator GALLAGHER: Eros—I keep wanting to call them the Eros Foundation, which shows my age in dealing with these things—talked about establishing an industry code and self-regulation of the X18+ films. What is your response to that?

Ms Rainsford : That is consistent with the direction the ALRC was heading in terms of a more co-regulatory or industry based classification model. It would require legislative change to the Commonwealth classification act to achieve that.

Senator GALLAGHER: That would not be allowed under current laws?

Ms Rainsford : No.

Senator GALLAGHER: But the government does not have a view on that yet?

Ms Rainsford : I am not aware that it does, no.

CHAIR: You have changed now from Attorney-General's to Communications, is that right?

Ms Rainsford : Yes, that is correct.

CHAIR: So we are talking to Mitch instead of George.

Senator GALLAGHER: I would imagine it is a different environment—from Attorney's into the arts.

CHAIR: I think we might have exhausted our questions on that. There are a few issues, but you addressed them anyway in answers to other questions. Can I get you to take on notice this question of jurisdiction, in response to Senator Gallagher's question about adopting the ALRC suggestion in relation to an industry code? If that industry code said that X18+ or something equivalent will include anything that is legal, which is what Eros is arguing for, so Refused Classification is only the material which is prohibited or illegal, whose agreement to that would be required?

Ms Rainsford : It would be the Commonwealth and each state and territory classification minister.

CHAIR: They would all have to agree, would they?

Ms Rainsford : They would all have to agree.

CHAIR: That implies that the Commonwealth does not have a constitutional head of power in this area.

Ms Rainsford : The basis for needing that agreement is that the Commonwealth is a party to that intergovernmental agreement from 1995, which sets out the basis for decision making like that.

CHAIR: Is that intergovernmental agreement legislated?

Ms Rainsford : No, it is not legislated; it is an agreement between the Commonwealth, states and territories.

CHAIR: Ignoring the politics of it, if the Commonwealth government said to the states, 'We're going to change the intergovernmental agreement and our tied grants are dependent upon your agreement to it,' they could get agreement fairly smartly, I would have thought.

Ms Rainsford : I am not in a position to comment on that.

CHAIR: You do not have to answer that. So you do not need to take it on notice. There is no constitutional barrier; it would only be the intergovernmental agreement that would be the issue.

Ms Rainsford : Yes, that is my understanding.

CHAIR: That concludes today's hearing. Thank you to all witnesses who appeared.

Subc ommittee adjourned at 11:21